2-083 (Text)

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Supreme Court.
"MONDAY & TUESDAY, DECEMBER g & 10, 1833.
("Before the Chief Justice, and the usual Military Jury.)
"Anthony Hitchcock, alias Hath, John Poole, James Riley, John Parry, David Jones, and James Ryan, were indicted for stealing on the 5th November, 1833, in the dwelling-house of Mr. James Mudie, at Castle Forbes, in the District of Patrick's Plains, sundry articles, his property; one John Hart, an inmate therein, being put in bodily fear. Hitchcock and Poole were indicted also, for maliciously shooting at Mr. John Larnack on the same day, with intent to kill and murder him; and that the remainder of the prisoners counselled, aided and abetted the said fellow - prisoners in the commission of the said felony.
"John Hart being sworn, deposed, that he was an assigned servant to Mr. John Larnack; on the 5th I was in the kitchen, and saw some men running at the back part of the house; I ran out and one of the men presented a gun at me, and desired me to go in again. Poole, Jones, Riley, and Ryan were there; they ran into the house; I afterwards saw them come out with a double-barrelled gun, a fowling-piece, and a musket. I also saw Mrs. Larnack and one of the female servants jumping out of the dressing-room window; I saw Poole and Jones rush up to them and order Mrs. L. to stand, telling her if she did not, they would blow out her brains; they compelled her to go into the kitchen, and stationed Riley at the door. I afterwards saw Hitchcock bring the shearers from the barn, and I saw them put forcibly into the store, and Perry was placed over them.
"I saw Poole bring out a chest of tea and pour its contents into a bag; some flour and pork was brought out of the provision store, as well as sugar; two horses were brought out of the stable by Hitchcock and the provisions put on their backs. Mrs. Larnack and the rest of us were locked up in the wool store; they said they should leave a sentry, and the first one that stirred for two hours, they would blow out their brains. Riley told Mrs. Lamack, that they wished her father (Major Mudie), was at home, and they would settle him; they went away, and Perry staid about five minutes after the rest; in about a quarter of an hour, I got out at the top of the store, and knocked the lock off the door, but hearing a gun fired, we all went in again. Six of them were armed; Ryan had a tomahawk, which contained a knife and saw. I heard one of the men say he would bring in Mr. Larnack's head and stick it on a chimney. I have no doubt of the identity of the prisoners at the bar. There was a great deal of punishment about six weeks ago.
"John Larnack, being duly sworn, said; on the morning of the 5th November last, I went to the river to superintend sheep-washing; between 12 and 1 o'clock I heard a voice exclaiming - 'come out of the water every bloody one of you, or we'll blow your bloody brains out;' on looking behind, I saw three men advancing towards me with guns presented; some others were at a short distance, apparently with the intention of intercepting me, should I escape from the other three; Hitchcock and Poole were two of the former number, and Hitchcock called out, 'that it was no use of thinking to make my escape, he would take good care I should never take another man to Court;' they were about 10 or 12 yards off when this took place. They called to the washers to get out of the way, as I stood between them and the prisoners.
"I jumped into the river among the washers, and told them to stand by me, as I was certain the prisoners would not fire for fear of hurting them. Finding the prisoners still pursuing, I made the best of my way to the opposite side of the river; on turning my head round, I saw Hitchcock levelling his piece at me, and soon after I heard a shot fired, and on again looking round, I perceived Hitchcock to be enveloped in smoke; I have not the least doubt that it was the prisoner Hitchcock who fired at me. He called to the washers, saying - 'why did you not get out of my way, I would have shot him.' There was a general cry among the party coming down to me, of 'shoot the bugger;' Poole called out, 'fire again, I'll take care you shall never get another man flogged,' and immediately a second shot was fired.
"I was just then getting out of the water, on the opposite side of the river; I could not perceive who fired the second shot. Hitchcock and Poole, now cried out, 'fire again, let's settle him, he's almost finished;' a third shot was fired, as I was getting up the bank on the opposite side. A voice called out, 'fire again, let's follow him;' an answer was made, 'no, take care of your ammunition, he's almost finished;' I made the best of my way to Mr. Dangar's farm, and returned to Castle Forbes on the following day. I was certainly very much frightened. Either Hitchcock was a very bad shot, or he must not have intended to hit me, as he could not well have missed me at ten yards distance.
"Robert Scott, being sworn, deposed, that he is a Magistrate of the Territory, and went with mounted police and constables in pursuit of an armed party of prisoners on the 13th November last, assisted by some black natives; we traced them to Mr. Dutton's, where we heard that seven men had robbed the place the evening before. We traced some footsteps, and about 12 o'clock we saw some smoke arising from a brush; we saw a man running down from an eminence, and we supposed him to be the sentinel. We charged immediately, and I saw the mounted policeman, Craddige fire at some person on the rocks. I saw three men running away; I dismounted and followed; the man with the musket, I commanded to lay down his arms; he would not and I shot him; I then sprang towards the other two, and bade them hold up their hands, which they did. They were Riley and Perry and the man who was shot told me his name was Henderson. Hitchcock and Poole were in the custody of Craddige. Afterwards in galloping around the ravine, I discovered Ryan concealed in the scrub. There was a frying pan on the fire melting lead; the prisoners gave themselves up without much resistance.  The place was about 17 miles from Castle Forbes, and we marched the prisoners to Maitland, which was about 11 miles off.
"Other witnesses gave evidence which corroborated the statements of the previous deponents.
"On being called for their defence, the prisoner Hitchcock first addressed the Court. He said, the treatment he had received at Castle Forbes was harsh in the extreme; he had been several years in the Colony, and while in the employment of the Crown, had been so fortunate as to gain the esteem of his superiors, by whom he was placed in a situation of trust and responsibility, in charge of the Post-Office at Newcastle. It was to the unfortunate circumstance of being assigned to the service of Major Mudie, he attributed all his subsequent misfortune, and present unhappiness. He had been in possession of an exemplary character before he went to Major Mudie; he had since been repeatedly flogged, by which, and by the unwholesome food he had subsisted on, his health had been ruined, and life itself rendered burdensome. Whatever punishment was threatened by the master to his servant, was always sure to be inflicted by the Bench, and this was the way in which justice was administered on the Hunter. If they refused to labour on a Sunday, flogging was threatened, and as surely given. Servants who had for months been due for tickets-of-leave, had been refused their indulgence, and, if at all importunate, a flogging bestowed rendered future application unnecessary. If the Court would but look at their bare backs, it would see that their statements were not exaggerated.
"The prisoner Poole had only to re-echo what the last prisoner had said. Bad treatment by Messrs. Mudie and Larnack had brought them to the ignominious fate to which they were about to be consigned. He had addressed a letter to the Principal Superintendent of Convicts, complaining of this bad treatment; but the letter had been intercepted by Mr. L. and kept back. He was aware that any thing they could urge in their behalf; would be of little avail - their doom was fixed; but he solemnly implored the Judge to cause an enquiry to be made respecting the treatment of assigned servants at Major Mudie's, in order to prevent others from being forced into the unhappy situation in which they were placed.
"The Chief Justice addressed the prisoners, and after a very pathetic address, passed the awful sentence of the law, directing them to be executed at such time and place as His Excellency the Governor should be pleased to appoint."
Hitchcock and Poole were forwarded to Maitland, by the steamer Sophia Jane, on Thursday evening, 19th December, to suffer the extreme penalty of the law, two days later, at the scene of their depredations. The same awful fate befell the other three prisoners, Riley, Perry, and Ryan, at the usual place of execution, in Sydney, at the same time on the 21st December. Jones was transported to Norfolk Island for life.
I will make no further comment upon these extraordinary trials, than to express my cordial approval of the proceedings of the Commission of Enquiry which succeeded them. If the whole of the allegations of these unfortunate men were not substantiated, enough was unquestionably proved, to exhibit a deliberate system of maltreatment, which even the most degraded of the human species, would not calmly have endured. Yet the indisputable fact remains, that whatever may have been said in the Report, the five principal complainants who made the charge that brought about the enquiry are now lying in ignominious graves.
It will now be my duty, Sir, to point out to you that Mr. Larnack has not only been guilty of barbarity in striking and ill-using prisoners; but has added to the miseries of their slavery, the horrors of starvation, - in a country like this, where provisions are proverbially plentiful and good, can lead only to disobedience and rebellion. Men speak, Sir, in England of the happiness and comfort of a convict: alas ! do but look on the picture - the plain and faithful portrait of a loudly-eulogised, and complete agricultural establishment, Castle Forbes. The meat is proved to be nauseous and unpalatable; a working bullock breaks its leg, and the meat is served out to the men. Those who know the condition of working bullocks, will readily appreciate the sorry banquet which a number of hard-working hungry men, must have enjoyed over the taint and sinewy flesh of such an animal.
But oppression, Sir, is not confined to bad food. It displays itself in the violent behaviour of the master, who, in fits of intoxication or anger, wreaks vengeance upon the unhappy mortals, whom the British Government commit to his paternal, or at least humane custody. What opinion, Sir, are we to form of the morality of the man who considers the holy Sabbath as unworthy of regard; and who insists on working his men on that day. Is it, Sir, surprising, that crime prevails here, when a man is actually punished by a Bench of Magistrates with a flogging for refusing to profane the Sabbath?
No two gentlemen in the Colony, could have been selected of greater intelligence and more honourable independence, than those composing the Members of this necessary Court of Enquiry. I will here ask, did Mr. Larnack disprove any of the charges respecting the badness of the provisions Did he show that good meat was given in lieu of bad - Did his equivocal explanation of stopping the letters of complaint, look like the conduct of a man conscious of his own innocence - Why did he not have the author of them arraigned at the bar of justice for false and malicious accusation has he, or Mr. Mudie proved their conduct towards the unfortunates in their power, to have been humane?
Major Mudie assumes a right of censure, and points out the turpitude of others, without recollecting that cruelty is a crime ten times more inexcusable than the burglar's violence, or the highwayman's fury, who in putting a pistol to your ears demands your purse or your life, and politely expresses his regret that necessity obliges him either to rob or murder you. There is no necessity, however, that can excuse cruelty. The Major complains that the men examined were allowed "not to give evidence of their own misconduct, but to criminate their master." What was the object of the enquiry ? Was it not to ascertain to what extent the assertions of the unfortunate men, now lying in their graves, were founded in fact The result is any thing but complimentary to the humanity of the Major.
In fact, Sir, the whole tenor of the evidence seems to imply that the unhappy men, who were executed, sought an innominious death, rather than submit to evils arising from persecution which they were unable to endure. Is not transportation under these circumstances WORSE THAN DEATH ! HUMANITAS